Credibility in asylum claims

By Caspar Latham - Legal Associate

13 Aug 2019

Lack of credibility is the most common reason for the refusal of an asylum claim in the UK.

In order to establish the validity of an asylum claim, the UN Refugee Convention of 1951 requires a ‘well-founded fear of persecution’ on the basis of one of five convention reasons (race, religion, nationality, political opinion or membership of a particular social group).

There are two aspects to the possession of a well-founded fear. Merely having a subjective fear of persecution is a necessary but not a sufficient condition for establishing an asylum claim. In order for the fear to be well founded, an objective test must also be satisfied, that there is a risk of persecution.

Credibility and the benefit of the doubt in asylum claims

Credibility is distinct from the concept of well-founded fear, despite being vital to informing the process of assessing an asylum claim.

It is possible to have an entirely credible account and still not have a well-founded fear of persecution.

Conversely, it is possible to establish a well-founded fear of persecution even if the account is not entirely credible, if, for example, it contains some lies or exaggerations of the fear.

In Karanakaran [2000], the Court of Appeal found that an asylum claim could succeed even if the person assessing it doubted parts of the account.

This relatively liberal approach to the assessment of credibility has been corroborated by the European Court of Human Rights in FG v Sweden [2016]. In that case, it was held that the special situation of asylum seekers means that the benefit of the doubt should be given to them when their credibility is assessed and their supporting documents evaluated.

The Home Office asylum and human rights policy instruction puts this succinctly: ‘a claimant’s testimony may include lies or exaggerations for a variety of reasons, not all of which reflect adversely on other areas’.

In addition, Rule 339L of the Immigration Rules provides that where an individual asylum seeker has made every effort to substantiate their account and provided a story which is coherent and plausible in light of the country evidence, they should be given the benefit of the doubt, even if not all aspects of their account are supported by documentary or other evidence.

What is meant by the ‘benefit of the doubt’ in an asylum claim?

In this guidance, a number of relevant factors are outlined which go some way towards explaining the need for a measure of leniency in assessing credibility. These include:

the limits and variations of human memory;

the impact of high levels of emotion or trauma on the encoding of memory; and

the impact of factors such as disorientation, anxiety, fear, lack of trust in the authorities on the disclosure of facts and submission of other evidence.

Taken together, these encourage a liberal approach to the assessment of credibility, as in Alan v Switzerland, where theUN Committee Against Torture warned that complete accuracy should seldom be expected from victims of torture.

What can harm the credibility of an asylum claim?

The Home Office policy instructions provide a number of indicators for the assessment of credibility. This provides a useful framework for seeing how a harsher approach might be taken towards the assessment.

These indicators are:

sufficiency of detail and specificity;

plausibility;

internal consistency and coherence; and

external consistency.

Indeed, these indicators may be applied more harshly if an asylum seeker has displayed certain ‘behaviour’ outlined in Section 8 of the 2004 Asylum and Immigration (Treatment of Claimants) Act, including reliance on false documentation or destruction of documents, claiming asylum after receiving an immigration decision or an arrest, or not claiming asylum despite having had a reasonable opportunity to do so in a safe third country.

Nevertheless, recent case law demonstrates that these indicators must always be applied with caution.

In the case of KB & AH, decided by the Upper Tribunal in 2017, the Tribunal described the indicators as ‘a helpful framework within which to conduct a credibility assessment’. However, it was stated that the indicators are neither an exhaustive list, nor a valid substitute for a fact-sensitive assessment of the evidence ‘in the round’.

Plausibility alone, despite being the most common reason for the rejection of asylum claims, raises a number of issues. For example, the distinction drawn between probability and plausibility is an important one. It may be improbable that someone might win the lottery. It is perfectly plausible, however. Improbable things happen all the time.

This distinction was made in HK[2006], where it was emphasised that the difference between the life experiences of the decision maker and the asylum seeker may distort their judgement of the account’s plausibility: ‘inherent probability, which may be helpful in some domestic cases can be a dangerous, even a wholly inappropriate factor to rely on in some asylum cases…indeed, it is likely that the country which the asylum seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents in this country will be unfamiliar’.

Clearly, the credibility indicators provided by the Home Office must be balanced alongside the benefit of the doubt indicated by the case law.

As this case law shows, the process of assessing credibility in asylum claims must necessarily be a complex and careful process, which does not slip into relying on a ‘one size fits all’ approach.

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